Chronic Pain and Cognitive Impairment Causes Disability

By Bonny Rafel

Cognitive deficits are an important consideration when determining disability. However, insurance companies tend to undervalue the debilitating impact that pain medication can have on a person’s mental state. If a claimant is suffering from cognitive deficits, the insurance company will usually handle the claim in one of two ways.

First, insurance companies will ignore the claimant’s cognitive complaints and proclaim work capacity in a sedentary occupation. This claim mishandling was seen in Mossler v. Aetna Life Ins. Co., 2014 U.S. Dist. LEXIS 89046 (C.D. Cal. June 30, 2014), where the court reviewed the denial of Long Term Disability benefits to a Senior Vice President, who had become disabled due to symptoms including widespread pain, fatigue, side-effects of medications, and cognitive deficits. Aetna denied Mossler’s benefits based on the opinion that he could perform a “sedentary” occupation. However, the court rejected Aetna’s basis as incorrect, pointing out that “even assuming Plaintiff could perform sedentary work, [Mossler] has many other intellectual responsibilities that require both financial expertise as well as a high level of interpersonal skills.”

Second, insurance companies are quick to disregard cognitive complaints when attributed to necessary narcotic pain medication. Many of our clients suffer from chronic pain and treat with pain management specialists. Prescribed narcotic pain medication is problematic because it can impact cognition. Courts recognize that effects of narcotic medication cause disability. For example, a court in determining that Unum unreasonably denied a claim based on its assumption that Bencivenga’s medical condition had improved with his reduction in the number and strength of prescribed pain medication does not automatically mean that his chronic pain has improved. A change in a claimant’s “medication regimen is [not] evidence of any vast improvement to his underlying medical condition” given his prolonged use of narcotic medication. Bencivenga v. Unum Life Ins. Co. of Am., 2015 U.S. Dist. LEXIS 39117 (E.D. Mich. Mar. 27, 2015).

The Ninth Circuit recently held that disability exists for those experiencing minimal loss of cognition who are required to maintain highly executive functioning skills to satisfy their occupational duties, such as attorneys. In Hertan v. Unum Life ins. Co. of Am., 2015 U.S. Dist. LEXIS 75261(C.D. Cal. June 9, 2015), the court acknowledged that “[e]ven minimal loss of cognitive abilities could . . . prevent [Hertan] from working full-time as an attorney while under the influence of Percocet.” Hertan struggled with side effects of drowsiness, dizziness, and an inability to concentrate from taking Percocet, and the court found her disabled.

When struggling with chronic pain, we at Bonny G. Rafel, LLC understand that you are faced with the harsh reality that the career you have worked so hard to achieve may become impossible to perform due to treatment with necessary narcotic pain medication. We recognize that cognitive impairment caused by treating with this medication can hinder your ability to perform highly executive function skills and prove your disability.